Grassley: Whitaker’s appointment constitutional, but a replacement should be found quickly

Sen. Chuck Grassley and the U.S. Justice Department view Whitaker’s appointment as constitutional, but Grassley said a process for a permanent replacement should begin within the next few weeks.


Julia Shanahan, Politics Reporter

Sen. Chuck Grassley, R-Iowa, told reporters in a press call that he is unsure if acting Attorney General Matt Whitaker is being considered for a permanent position, but said President Trump is in his constitutional rights to appoint him to the temporary position.

“Within a few weeks the president ought to have a nominee up here,” Grassley said. “It’s bad for the Justice Department to have 20 acting people, so the shorter we have an acting Attorney General, the better.”

Trump appointed Whitaker acting U.S. Attorney General Nov. 7 after asking former Attorney General Jeff Sessions to resign. Whitaker’s appointment has sparked controversy because he will take over supervision of Special Counsel Robert Mueller’s investigation, which Whitaker has opposed.

Whitaker received a law degree and M.B.A. from University of Iowa, where he also played football and participated in the 1991 Rose Bowl.

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Grassley referenced a 20-page document released Wednesday by the Justice Department’s Office of Legal Counsel that cited Trump’s appointment of Whitaker as legitimate. The opinion also stated it is a rarity for someone to be appointed to this position without Senate confirmation.

Michael Schor, a Drake University law professor, said he thinks the appointment is unconstitutional, but that there are reasonable arguments on both sides of the aisle.

Schor said the appointment violates the Attorney General Succession Act, which states that if the Attorney General is absent or resigns, then the power would fall to the next person in line. In this case, that would be Sessions’ deputy Rod Rosenstein, who has been vetted by the Senate, unlike Whitaker.

“No president has ever done this before, and that tells you a lot about what’s going on,” Schor said.

The Federal Vacancies Reform Act of 1998 states the president can appoint a temporary, high-ranking official until a permanent official is vetted by the Senate and put in place. Trump appointed Whitaker under this act, as Whitaker was Sessions’ chief of staff.

Schor said this act was passed so that in the case of an emergency, the president can act quickly to fill a vacant seat. Schor said in this case, Trump created the emergency himself when he asked Sessions to resign.

“[Trump] is entitled to get rid of people, but he still has to follow procedures,” Schor said.

UI law Professor Andy Grewal said even with Grassley holding the position of Senate Judiciary Committee chairman, he doesn’t hold a substantial amount of control over the Whitaker appointment.

“The Senate as a whole can say, ‘We want to investigate. We want to see the memos that are written and that he’s not ethically conflicted,’ ” Grewal said.

The attorney general’s role under Sessions was to oversee special counsel Robert Mueller’s Russia investigation — a role that Sessions recused himself of despite criticism from Trump.

Whitaker has been a long-standing critic of the Russia investigation, writing an opinion column for CNN in 2017 citing that Mueller’s investigation is “going too far.” His comments have drawn criticism from Democrats, who have called for Whitaker to recuse himself from the investigation similar to Sessions.

Whitaker visited Des Moines Wednesday morning where he did not address the controversy surrounding his appointment.

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Sen. Joni Ernst, R-Iowa, said in a statement last week that Sessions should be commended for “prosecuting the largest number of violent offenders and firearm defendants in our nation’s history,” adding that Whitaker is a man of integrity and value.

“As Acting Attorney General, Matt Whitaker is a steady hand that will provide good leadership and judgment, and will ensure that the United States Department of Justice upholds the highest standards of the rule of law,” Ernst wrote in the statement.

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